Volume 35 — Mississippi Reports

<p>1. Writ of error: generally allowable, unless prohibited in a particular case. — Under the general provisions of the statute, writs of error are allowable to revise the judgments of the Circuit Court in all civil cases, unless there be an express prohibition in a particular case: and hence a writ of error will lie from the judgment of the Circuit Court, confirming, or setting aside the verdict of a jury of inquest, summoned to assess the damages accruing to the owner of land from the location of a railroad thereon, if there be no express prohibition of it in the act authorizing the proceeding.</p> <p>2. Statutes : construction op : when literal interpretation not adopted.— In the construction of statutes, the main object is to ascertain the true meaning an'd intention of the Legislature; and where, upon a due consideration of the subject-matter of the statute, and the object intended to be accomplished by its enactment, such intention is manifest, courts will give it effect, although it be not sanctioned by the literal interpretation ; but courts will not abandon the literal interpretation to carry out an alleged intention of the Legislature, if such construction be doubtful.</p> <p>3. Jury: competency op, when depending on being a freeholder. — It is not necessary that a juror, summoned to assess damages accruing to the owner of land, by reason of the location of the New Orleans, Jackson, and Great Northern Railroad thereon, should own a freehold estate in lands in the county wherein he is summoned and resides; it is sufficient to qualify him to act, that he owns such interest in lands situated in any other county in this State.</p> <p>4. Same: same. — A person, who is in possession of land under a title bond, conditioned that the obligor will convey the title in fee, upon payment of the purchase-money, has, before the purchase-money is paid, such an interest in the land as will qualify him to act as a juror, in a case where the law requires the jury to be composed of freeholders.</p> <p>5. Sheriff: clerk: effect of return “duly executed” and of entry “ that the jury were duly sworn.” — The return by the sheriff of “ duly executed,” on process committed to his hands, and the entry by the clerk ‘‘that the jury were duly empanelled and sworn,” have constantly been held to be conclusive, of the due execution of the process, and the due empanelling and swearing of the jury, upon the presumption that the officer had properly discharged his duty; and hence, when the sheriff returned, that a jury of inquest summoned by him to assess damages accruing to the owner of land, by reason of the location of a railroad thereon, “were duly empanelled and sworn according to law, to discharge their duties,” it was held, that the return must be construed as a statement that the proper oath was administered to the jury, and not as a recital of the substance of the oath administered, and therefore that it appeared that the jury were properly sworn.</p> <p>6. Judgment: notice: proceedings in rem. — As a general principle, notice, either actual or constructive, to the party to be affected by a judgment, is essential to its validity, but this rule does not apply to proceedings in rem, or to suits in the nature of proceedings in rem: In such cases, the seizure of the thing which is the subject-matter of litigation and on which the judgment is to operate, gives the court a jurisdiction over the persons of those interested, and is considered as notice to them ; and judgments rendered in such proceedings are held valid, upon a principle of public policy, against all persons interested, whether they had actual notice of the proceedings or not.</p> <p>1. Same: case in judgment. — The charter of New Orleans, Jackson, and Great Northern Railroad Company, provides, that the jury summoned to assess damages to the owner, for the appropriation of his land to the use of the road, shall assemble upon the premises and examine the land and mark out the road-bed before rendering their verdict; but it makes no provision for any other notice to the owner. This'action of the jury is strictly a proceeding in rem, and the validity of their verdict is governed by the principles of law applicable to such cases. (See Stewart v. The Board of Police of Hinds Go., 25 Miss. R. 4Y9.)</p>

Hon. B. 0. Buckley, vice-chancellor. In September, 1848, Ingraham and Read filed their bill against Thomas G. McIntyre and William Bridgers. Held: that the charter of the bank contained no grant of power to make such assignment. The second case, Montgomery et al. v. Gfalbraith et al., 11 S. & M. 555, was an action of detinue brought by the trustees of the Planters’ Bank against the assignees of the bank, to recover a promissory note, a certificate of stock, and a deed.

<p>1. Chancery: jurisdiction: will not enjoin execution in ejectment, at THE INSTANCE OE A STRANGER HOLDING PARAMOUNT TITLE. — A COHI’t of equity will not, at the instance of the holder of the paramount legal title, restrain the execution of a writ of habere facias possessionem emanating from a judgment in ejectment between other parties: in such a case, the complainant not being at all affected by the proceedings in ejectment to which he was no party, may recover possession in another action of ejectment against the person in possession.</p> <p>2. Same : same : defendant in ejectment not entitled to injunction to protect title of a stranger. — The defendant in an action of ejectment, against whom judgment has been entered, cannot restrain the execution of it by attorning to the holder of the paramount legal title, and receiving possession from him.</p> <p>3. Same: pleading and practice: exhibits: when inconsistent with the bill. — The bill alleged satisfaction of a judgment at bar, upon the averment that the proceeds of a sale made, under an execution emanating therefrom, had never been appropriated to the payment of any other judgment against the defendant: the record of the judgment, which was made an exhibit to the bill, showed the contrary: held, on demurrer to the bill, that, in the absence of all explanation in the bill of the statement in the record, the court must consider that the appropriation had been made as stated in the exhibit.</p> <p>4. Execution: when issued after death of defendant only voidable.— An execution issued and tested after the death of the defendant, and without revivor, is not for that reason absolutely void, but merely voidable. See Smith et al. v. Winston et al., 2 How. 601; Harrington v. O'Reilly, 9 S. & M. 216 ; Roe ex dem Shelton v. Hamilton, 23 Miss. R. 491.</p> <p>5. Same : voidable execution good until set aside. — A voidable execution, is one which, upon a proper proceeding, can be quashed or avoided •, but until this is done it is deemed valid, and a sale made under passes the title.</p> <p>6. Same: when sale under good : sale of land under execution tested after the death of THE DEFENDANT. — The title of a purchaser at execution sale, who is unaffected with notice-of the defect in the execution, cannot be defeated upon the ground that the execution was irregular and defective, and therefore voidable: and hence, a sale of land made under an execution issued and tested after the defendant’s death, and without scire facias, and revivor against the heirs, will not be set aside at their instance, if no other cause be shown than that the execution was voidable. See 8 J. R. 361; 16 Ib. 537 ; 1 Cow. 737 ; 6 Iredell, 288 ; 9 S. & M. 218.</p> <p>7. Same : same. — A court of equity will not set aside a sale of realty made under an execution issued and tested after the death of the defendant, merely because the heirs had no. notice of the judgment, if it appear that it was unsatisfied and a valid claim against the defendant, and that no injustice or injury has been done to the complainants.</p>

<p>Error to the Circuit Court of Wilkinson county. Hon. Stan-hope Posey, judge.</p>

ERROR, to the Circuit court of Yazoo county. Hon. E. Gr. Henry, judge. I. It is not true in fact that the plaintiff was enjoined by the defendant and others, from further proceeding at law. The testimony before the court proved the existence of no injunction of the hind, but only an injunction restraining him from claiming the land under certain specific deeds. 2.

Hon. B. C. Buckley, vice-chancellor. The appellees filed tlieir bill in the court below against H. L. Stone and Jno. A. Roberts, for the purpose of procuring a perpetual injunction against a sale of certain real estate and a slave, conveyed by the complainant, Mrs. Montgomery, to Roberts as trustee, to secure certain debts due to H. L. Stone.

<p>1. HUSBAND AND wife: WIFE ENTITLED TO MONEY AS HER SEPARATE ESTATE under tiie act of 1839. — Money is embraced in the legal term “ property,” and bence is within the provisions of the first section of the Married Woman’s Law, of 1839, which enacts, “that any married woman may become seised or possessed of any property, real or personal, by direct bequest, demise, gift, purchase,'or distribution, in her own name, and as of her own property.”</p> <p>2. Trusts and trustee : determination of trusts : right of cestui que trust to sue at law. — After the purpose of a trust has ceased, or been accomplished, the trust no longer continues: and the cesíui que trust may maintain an action at law for the trust property, without any formal conveyance of the legal title by the trustee. See 1 Kelly It. 388; 2 Bailey R. 330.</p> <p>3. Husband and wife: right of wife to she husband’s ex’or. — The reception by the husband of money belonging to the wife, under the Act of 1839, does not create a trust, which is only cognizable in a court of equity: in such a case, the husband is agent for the wife, in whom the legal title to the money is vested, and upon the husband’s death she may maintain an action at law against his executor to recover it.</p>

<p>Error to the Circuit Court of Hinds county. Hon. John Watts, judge.</p> <p>Cited Selph v. Howland, 1 Cushm. 264.</p>

Hon. B. M. Neilson, judge. The appellants, Cain and Carner, filed their petition in the court below; in which, it is stated, that Amanda J. Bunkley, wife of appellee, in December, 1857, died at the… Held: by wives, under the Act of 1839 ; and plantation stock, &c., only under the Act of 1846; and the property so held or acquired continues subject to those acts; whilst property held or acquired, since the new code, comes under its provisions.

<p>1. Probate court: jurisdiction: executor and administrator: distribution. — The Court of Probates has the power to determine who are the distri-butees of an estate, and to compel the administrator to deliver the assets in his hands, to the persons adjudged by the court to be entitled to the same by distribution; and hence, where an administrator, acting in good faith, under a valid order of the court, distributes the estate to the persons adjudged to be entitled thereto, he will be protected against the claim of a distributee pretermitted in the decree. Aliier, when the administrator undertakes for himself, to decide who are the distributees. See Loring v. Sleineman, 1 Met. R. 204.</p> <p>2. Same : same. — A final settlement, made by an administrator, in good faith, upon due notice to such persons as are adjudged by the Court of Probates to be the only distributees of the estate; and payment to them of assets in his hands; constitute a valid discharge to him; and the Court of Probates has no jurisdiction thereafter to entertain a petition by a distributee who was pretermitted, to enforce distribution to him of his share of the estate.</p>

<p>1. Executor and administrator: sale op slates by : notice. — An order to sell slaves, for tlio payment of debts, may be made without notice to the dis-tributees. See Hutch. Dig. 669, \ 109.</p> <p>2. Probate court: jurisdiction to annul a sale : chancery: jurisdiction. —The Court of Probates has no jurisdiction to annul an administrator’s sale, for fraud, after the term at which it was confirmed: in such a case, the remedy of the heirs is in equity.</p>

<p>Executor and administrator: distribution by agreement of the heirs. —A delivery by the administrator, to one of the distributees, of a personal chattel, under an agreement that he should retain possession during his life, and afterwards it should go to the other distributees, who all acquiesced in the agreement, is a complete act of administration: and upon the death of the tenant for life, the right of possession vests immediately in the other distri-butees, and not in the administrator.</p>

<p>1. Executor and administrator : effect oe final settlement made without notice. — A final settlement by an administrator, &c., is not conclusive as to the heirs, unless made on due notice to them; but it is not absolutely void if made without notice. In such a case it will be treated as a partial, or annual settlement, and as prima facie correct.</p> <p>2. Same : how notice of final settlement proven. — Notice of a final settlement cannot be proven by parol: it must be shown by the record.</p>

<p>Executor and administrator : recovert by, only on title op decedent.— In an action brought by an administrator, the plaintiff can only recover what belongs to him in his representative capacity.</p>

Hon. John E. McNair, judge. Hilliard, the defendant in error, sued Eox and others, tbe plaintiffs, to the April Term, A. D. 1854, of the court below, upon a note made by them for $1400, dated 26th of May, 1853, and due nine months after date, and payable to said Hilliard or bearer.

Hon. John Watts, judge. The facts of the case are very fully stated in the opinion of the court. Cited Story on Bailments, §§ 41, 42, 55, 62, 63, 72, 82, 88; 1 Greenl. Ev. §§ 117 to 120.

<p>1. Will: residuary clause: wiiat passes by. — Property unbequeathed, will not pass by the residuary clause of a will, which especially, or by general words points out the sources of the residuary fund.</p> <p>2. Same : case in judgment. — C., who died testate, left two slaves undisposed of by his will, which were sold by the executor, under an order of the court for that purpose. The residuary clause in the will, after directing the executor to sell certain lands, negroes, and the cotton, corn, cattle, horses, mules, &c., belonging to his estate, continues in these words: “ The money arising from the sale of said lands, negroes, cotton, &c. &e., after paying my debts and the expenses of the administration of my estate, shall be applied to the payment of the pecuniary legacies (provided for in a former part of the will), and if, after such payment, there shall be any money arising from such sale remaining, I bequeath it, together with any other money I may have, to my daughters, M., E., and 0.” Held, that the said two slaves do not pass by the residuary clause in the will, but go to the distributees, under the law, and the money in the hands of the executor, arising from their sale, will take the same direction.</p>

<p>1. Verdict : evidence of debt without judgment. — A verdict, though. no judgment be rendered on it, is competent evidence of tbe plaintiffs demand, unless it be stayed or set aside ; and tbe plaintiff is entitled to judgment on it, at any time before it is barred by the Statute of Limitations. See Kip v. Brigham, 7 J. R. 168; Estep-v. Hutchman, 14 Serg. & R. 435.</p> <p>2. Chancery: when assignee of verdict may go into equity to collect it.— Tbe assignee of a verdict in favor of a bank, which was afterwards dissolved on quo warranto, has a mere equity in the debt, which cannot be enforced at law in his name, he being no party to the record; nor can judgment be rendered on it, in the name.of the bank, because it is dissolved: and hence, in such a case, the assignee may maintain a bill in equity to enforce the collection of the verdict.</p>

<p>1. Chancery : pleading and practice : demurrer : when bill good as to one dependant, and bad as to another. — When a hill is sufficient as to one of several defendants, it will not he dismissed on his demurrer, although it may he insufficient as to another defendant, who has not appeared and defended the suit.</p> <p>2. Same : fraudulent grantee is executor in his own wrong. — The grantee in a conveyance fraudulent as to the creditors of the grantor, and who, after the death of the latter, claims and holds possession of the property thus conveyed, is liable to the creditors of the decedent, as his executor de son tort, and may be proceeded against as such, both at law and in equity.</p> <p>3. Same : jurisdiction : executor de son tort : parties. — A court of equity has jurisdiction of a creditor’s bill against the executor de son tort of the debtor, to set aside a fraudulent conveyance, made by the latter to the former; and it is no objection to such a bill, that there is no legal representative of the debtor who can be made a party defendant to it.</p>

<p>Bills op exchange and promissory notes: accommodation acceptor cannot DEFEND POR FRAUD PRACTISED ON TIIE DRAWER.-An accommodation acceptor of a bill of exchange, cannot set up as a defence to an action against him on the bill by the holder, the fraud of the payee, in procuring the bill from the drawer; and the drawer will not, for such a cause, be entitled to an injunction against the holder, restraining him from collecting the bill from the acceptor. Handy, J., dissented.</p>

<p>1. Corporation : construction of charter. — Grants to municipal corporations will be strictly construed, so as not to vest in them any right or power not expressly, or by necessary implication, conferred by their charters.</p> <p>2. Same: city of canton. — The right granted to the city of Canton, by its charter, “ to tax or entirely suppress all petty groceries,” does not confer upon the corporation the power to grant licenses for retailing.</p> <p>3. Same : persons paying money to a corporation under an illegal ordinance entitled to recover IT back. — Where a municipal corporation assumes the power, not conferred by its charter, to grant a license to retail within its limits; a person holding such a license from the Board of Police, and in obedience to the corporation ordinances, purchasing the same privilege from the corporate authorities, will be entitled to recover, from the corporation, the sum so paid, as for money had and received by it, for his use.</p>

<p>1. Contract : construction of a question for the court — The construction of a written instrument is a question of law, to be determined by the court, and it will be error for the court to submit it, by instructions, to the determination of the jury. See 2 Parson’s Contr. 4.</p> <p>2. Statute of limitations : non-promise : acknowledgment of justice of debt. — An acknowledgment by the defendant that a debt, barred by the statute, is just and unpaid, is, without any promise to pay it, sufficient to take it out of tlie bar of the statute.</p> <p>3. Same : same. — A clear and unconditional acknowledgment of the justice of a debt, barred by limitation, together with an express waiver of the benefit of the statute, will revive it, although accompanied by a conditional and insufficient promise to pay it.</p> <p>4. Same : same. — Where there is a clear and unconditional acknowledgment of the justice of the debt, and an express waiver of the benefit of the Statute of Limitations, accompanied by a promise to pay it when the defendant should become able to do so, it is unnecessary for the plaintiff, in order to avoid the defence of the Statute of Limitations, to show that the defendant is able to pay the debt: the acknowledgment and waiver being sufficient to save the bar.</p>

<p>Will : instrument not designed as such not admissible to probate. — An instrument intended by the maker to operate as a deed, will not be entitled to probate as a will, although it may be inoperative as a deed.</p>

<p>ERROR to the Circuit Court of Warren county. Hon. J. S. Yerger, judge.</p>

<p>1. Contract : consideration : performance by promisee. — If the promisee, do the thing required in the agreement of the promisor as the consideration of his promise, the latter is bound, although the promisee was under no obligation to do it: and, therefore, when the defendant promised to accept and pay for certain goods to be delivered by the plaintiff, at a specified time and place, . and the plaintiff, without having bound himself to do so, delivered the goods according to the defendant’s agreement, it was held, that the defendant was bound to accept and pay for the goods.</p> <p>2. Pleading : contract : sale of goods. — The declaration averred that the defendant promised to accept and pay for, a gin of a specified description, to be delivered by the plaintiff on a future day, if it should “ perform well” when put in operation, according to the directions accompanying the same; and that the plaintiff had delivered a gin of the description required, and “ that it would have performed well,” but the defendant refused to accept it: held, on demurrer, that it sufficiently appeared that the directions accompanied the gin when it was delivered.</p> <p>3. Sale : agreement to give note for price : when no demand for note necessary. — The defendant purchased goods of the plaintiff, to be delivered at a future day, when, by the terms of the sale, he was to give his note, due after date, for the price: the defendant, without any just cause, refused to accept the goods when they were delivered: held, that it was unnecessary, in order to give the plaintiff a right of action on the agreement, that he should demand of the defendant his note.</p> <p>4. Same : same : remedy where the note is not given. — Where the purchaser agrees to give, by a specified time, his note'due after date, for the price of the goods, and he fails and refuses to do so, the seller may, before the time when the note would mature, bring his special action on the case for damages for the breach of the contract, in not giving the note : but he cannot sue in as-sumpsit for goods sold and delivered, until after the expiration of the credit agreed to be given. See.Musson v. Price, 4 East, 147 ; Dutton v. Solomonson, 3 Bos. & Pul. 582; Hoskins v. Dvperoy, 9 East, 498 ; Story on Sales, $ 444.</p>

<p>1. Grand jury : record : presumption in favor of. — Unless it appear affirmatively to the contrary from the record, it will be presumed, that the grand jury was duly and legally organized, and composed of the legal number of competent persons,</p> <p>2. Same : same. — The person whose name is indorsed on an indictment as foreman of the grand jury, will be presumed to have been duly appointed as such, unless the record show the contrary.</p> <p>3. Same : indictment : signature of foreman of grand jury. — It is not necessary for the foreman of the grand jury, in indorsing the return of “a true bill” on an indictment, to sign his full Christian name; it is sufficient if he use the initials.</p> <p>4. Evidence : retailing : proof of license is on the defendant. — It is unnecessary for the State, in a prosecution for retailing without license, to prove the negative averment, that the defendant had no license. The fact, if it exist, that the defendant had a license, is peculiarly within his knowledge, and in his power to establish, and ought therefore to be proven by him. See Roscoe’s Crim. Ev. (2d ed.), 72; Gening v. The State, 1 McCord, 573.</p> <p>5. Judgment: when entry void as a judgment, the court may, at a subsequent term, render proper judgment.. — -An entry on the minutes of the court, recording the verdict of guilty in a criminal case, and ordering that the State “ recover of the defendant - dollars, together with the costs in this behalf expended,” &c., is no judgment; and the court may, therefore, at a subsequent term, render a proper judgment upon the verdict thus recorded.</p>

<p>Trespass : action for statutory penalty for cutting trees : proof of title. — Possession of land by the- plaintiff, under color and claim of title, is prima faoie sufficient evidence of ownership, to enable him to maintain an action for the statutory penalty for cutting trees thereon. In such a ease, if the defendant relies on want of title in the plaintiff, he must show affirmatively that it is in himself, or some third person.</p>

Hon. E. Gr. Henry, judge. The plaintiff in error brought this suit against the defendants in error, in the Circuit Court of Madison, in January, 1858. Held: upon general principles, that the action of debt was the only remedy, and that it could not be joined with a count in trespass quare clausum fregit.

. Appeal from the Chancery Court of Pike county. Hon. John E. McNair, chancellor. On the 7th day of August, A.D. 1857, the appellant filed his bill against James Keegan, and Eliza Elizabeth Keegan, his wife, and William Ellyry, to recover certain slaves.

Hon. Stanhope Posey, chancellor. This was a bill filed by John Brown against Richard D. Shaw, executor of the last will and testament of James Brown, deceased. Held: that a person residing abroad, at school, acquires no rights of settlement, but retains his former domicil. It has been held that the domicil of a minor is not changed by an absence of seven years, there being no evidence of an intention not to return. 4 Greenleaf Rep. 47; Seistard v. Kuns, 8 Blackf. 345.

Hon. W. W. Whitehead, judge. In September, 1853, James R. Shackelford and wife and others, filed their petition in the court below, against Green Crowder, the administrator, and Mrs. Mary J. Stokes,… Held: and for a now distribution ; and if this cannot be done, they then prayed that Green Crowder be held accountable for the difference in value in the two lots of slaves.

<p>1. Husband and wine: conveyances to wine’s separate use: rule as to intention to exolude husband. — No prescribed form of words is necessary to create a separate estate in a feme covert; it is sufficient, if the intention of the donor or testator to exclude the marital rights of the husband, clearly and manifestly appears.</p> <p>2. Same : same. — The marital rights of the husband, by the common law, are favored, and in dispositions of property for the benefit of married women, his rights will not be considered as interfered with, unless there be a clear exclusion of them.</p> <p>3. Same: same: ennect on appointing trustee. — By the law of Alabama, which differs, in this respect, from the general doctrine, the intervention of trustees, in dispositions of property for the benefit of married women, furnishes no evidence of any intention on the part of the grantor, or testator, to exclude the marital rights of the husband.</p> <p>4. Same : case in judgment. — The father conveyed a slave to trustees, for the benefit of his married daughter, subject to the following trusts, viz.: “That the said trustees, or the survivor of them, shall permit my daughter, N. H., wife of J. H., to have and enjoy the use and possession of the said slave and her future increase, for and during the natural life of the said N. H. After her death, that the said trustees, or the survivor, shall and will convey the same unto the heirs of N. H.” The slave was levied on, to procure satisfaction of a judgment rendered against the husband; and on the trial of the right of property, it was held, that by the common law, and also the law of Alabama, a separate estate was secured by the deed to the wife.</p> <p>5. Same : ennect on words “ have and enjoy the use and possession.”— The use of the phrase, “that the wife shall have and enjoy the use and possession” of the property conveyed to trustees for her benefit, is a sufficient indication of an intention by the grantor, to exclude the marital rights of the-husband. See Tyrrell v. Hope, 2 Atkyns, 557.</p>

<p>ERROR to the Circuit Court of Rankin county. Hon. John Watts, judge.</p> <p>Cited Story on Partn. 158-4-5.</p> <p>Cited Qraig v. Oily of Vicksburg, 31 Miss. 216; Stokes v. Winslow, lb. 518.</p>

<p>1. Board or police: appeals prom: who mat appeal. — Under the Statute (Hutch. Dig. Y12, | 45, re-enacted in Rev. Code, 419, Art. 33), any person, whether a party to the record or not, who is aggrieved by a judgment of the Board of Police, may appeal, by certiorari, therefrom, and show by evidence apart from the proceedings in the Police Court, that his right has been injured by such judgment.</p> <p>2. Same : order granting license to retail, mat be appealed prom by corporate authorities claiming that right. — The corporate authorities of an incorporated town, containing two thousand inhabitants and upwards, have the exclusive right to grant licenses for retailing therein; and may, therefore, appeal, by certiorari, from an order of the Board of Police, granting a license to retail within the limits of the corporation.</p> <p>3. Corporation : contracts without seal, when there is no common seal.— When the charter of a municipal corporation, authorizes it “ to have a common seal, and to contract under the same, or without it,” an appeal bond of the corporation is sufficiently sealed, with the private seal of the President of the Board of Selectmen, if there be no common seal.</p> <p>4. Board op police : appeals prom : judgment on appeal not disturbed por insufficient supersedeas bond. — A verdict and judgment, rendered in favor of the appellant in the Circuit Court, upon an appeal from a judgment of the Board of Police, will not be disturbed, if otherwise correct, on account of a defect in the bond, executed to procure a supersedeas of the judgment appealed from.</p>

<p>Lien : enrolment act of 1841: constables not bound by. — The 9th section of the enrolment law of 1844 (see Hutch. Dig. p. 892), which requires sheriffs and coroners to examine the judgment roll, and appropriate the proceeds of a sale of property made by them, to the satisfaction of that judgment against the defendant which appears to have a prior lien, does not apply to constables, making sales under executions emanating from judgments rendered by justices of the peace; and hence, if a constable make a sale, and appropriate the proceeds to the judgment under which it was made, he will not be liable to a creditor, whose judgment was a superior lien on the property.</p>

<p>1. Land laws: patent under act op 1852, ch. 16, $ 15, need not be signed by secketaey op state. — It is not necessary that a patent for land, issued under the Act of 15th of March, 1852 (Session Laws, ch. 16, $ 15), should he signed by the Secretary of State; it is sufficient if it he signed by the Governor, and sealed with the great seal of the State.</p> <p>2. Bills op exceptions : exception to evidence : case in judgment. — The hill of exceptions recited, that a witness for the plaintiff stated, “that he was present when a contract was made between the defendant and another, and • that the contract was in writingdefendant then objected to any further evidence of the contract, unless it he produced ; the court overruled the objection, and held that testimony might he introduced to prove the execution of the contract, hut not its contents. The witness then stated, “ that the instrument he saw executed, was a contract signed by E., as agent for the defendant, and was under seal.” Meld, That it did not appear that the testimony of the witness, in relation to the execution of the contract, was objected to, and that its admission was no ground for a new trial.</p> <p>3. PRINCIPAL AND AGENT: TRESPASS : EVIDENCE TO ESTABLISH AGENCY : CASE IN judgment. — In an action to recover damages, for a trespass alleged to be committed by the defendant’s agent, in cutting plaintiff’s trees, proof that the alleged agent executed a contract for the defendant, to furnish cross-ties to a railroad, is admissible in connection with other proof, showing that the timber cut -was manufactured into cross-ties, and delivered by defendant’s wagons on the road, upon the point, whether the alleged trespass was committed by defendant’s agent, and in the course of the business in which he was engaged.</p> <p>4. Same : when principal liable por trespass op agent. — The master and principal is liable for a trespass committed by his agent and slaves, with his knowledge and approbation, or subsequent sanction.</p> <p>5. Same : proop op principal’s knowledge op trespass : case in judgment.— Proof, that a large number of trees were cut on plaintiff’s land, and manu-factored into cross-ties by the defendant’s overseer and slaves, and under the superintendance of his agent, and that they were hauled away by his teams and delivered to a railroad company, with whom the defendant had a contract to furnish cross-ties, and that defendant resided in the same neighborhood in which plaintiff’s land was situated, is sufficient to warrant the jury in finding, that the trespass was committed with his knowledge and approbation.</p>

<p>1. Pkocess : service : case in jüdgment. — The following return of service of a summons is good, viz.: “ Executed personally on the defendant in the following manner: I told him I had a writ for him in the within-named case, and offered him a true copy thereof which he refused to receive. I then commenced reading the within to him, and he refused to hear it, and left me. H. J. R., Sheriff.”</p> <p>2. Practice : return term. — The return term of an action at law, is the first term after the summons has been legally executed.</p> <p>3. Same : right op dependant to plead at return term. — The defendant’s right to plead to the action at the return term, is not lost or waived by a motion . to quash the summons, or the return on it; and it will be error to refuse his application to plead, and enter judgment by default against him.</p>

Hon. T. A. Cheves, judge. 1. By the law of Maryland, where the Colonization' Society was chartered, the society has the right to hold property of all kinds; the… Held: that the slaves directed to be purchased, are for emancipation contrary to law, then it is submitted, that the said trust should be executed, with the exception of this part of it. This is a matter easily separated from all of the other purposes of the trust, and this separation should be made, if necessary.

<p>1. Taxes : sales op slaves, horses, etc., subject to county levies. — Traders in horses, mules, and slaves are liable, under the Revenue Act of 1857, to pay the county levies on the amount of their sales.</p> <p>2. Same : county taxes not collectable, without assessment by the board op police. — A collection of county taxes, on the amount of the sales of slaves, horses, and mules, made before any assessment of the same by the Board of Police, after the passage of the Revenue Act of 1857, is illegal; there must he a legal assessment of the county levies, by the Board of Police, to authorize the sheriff to collect them.</p>

<p>Taxes: owners or circuses not liable to county levies. — The sum of twenty-five dollars imposed, by the Revenue Act of 1857, on each day’s exhibition of a circus, is not a tax on property, but a charge for a license for an exhibition; and hence, the owner of a circus is not liable to pay, in addition to the sum imposed by the statute, any other amount, for county levies.</p>

Hon. I. M. Simmons, judge. This was a petition in the Probate Court, by Yan Yacter and wife, against A. A. McWillie, as executor of Ann… Held: that “the truth of this inventory cannot be controverted in the ecclesiastical court.” Eonblanque Eq. 588, side page 418; Hinton v. Parker, 8 Mod. 168 ; Qatchside v. Ovington, 3 Burr. 1922. “In the absence of statutory directions, the modes of procedure adopted by the ecclesiastical courts of England, are in force in our own Probate…

Hon. J. S. Yerger, judge. The case is very fully stated in the opinion of the court. We desire to present but two points, upon which we think the court below fell into error. Held: by the court below, to be a mere power of attorney, or writing authorizing Butler, as agent, to receive and store goods for the parties signing it, and that they could revoke the agency whenever they thought proper to do so, whether he was willing or not.

<p>1. Ejectment: action to recover land under pleading: act of 1850: demise. — An action to recover possession of land, under, the Pleading Act of 1850, is not subject to the technical rules which regulated the action of ejectment at common law; and, in such action, it is not necessary to state a demise to the plaintiff: it is sufficient if the declaration allege title in the plaintiff, at the commencement of the suit.</p> <p>2. Same: judgment in, conclusive op title in a subsequent action por mesne propits. — A judgment for the plaintiff, in an action to recover land under the Pleading Act of 1850, is competent evidence in his behalf, in a subsequent action by him against the defendant to recover mesne profits; and is conclusive, that the title to the premises was in him from the commencement of the action to recover possession: the defendant will not, therefore, be permitted to show, in opposition to the judgment, that the title was in a stranger, or that he was in possession under a contract of lease from a third party.</p> <p>3. Same: the owner op land entitled to mesne propits, though out op possession. — The right of the plaintiff to recover for mesne profits, does not depend upon his having actual possession of the premises, but upon his title; and hence, where he shows, in support of his title, a judgment in ejectment against the defendant, it is unnecessary for him to show further, that he has received possession under said judgment.</p> <p>4. Evidence : deposition of non-resident, who afterwards removes in the state, not competent. — The statute, which authorizes the taking of the deposition of a non-resident witness in an action at law, is founded upon the reason, that the witness is without the jurisdiction of the court, and cannot be compelled to attend; but, being in derogation of the right of a party, to have a witness against him confronted with the jury, so that they may observe his manner of giving his testimony, his feeling or bias for either party, and his intelligence, — which are important tests of the weight to be given to his statements, — it will not be construed beyond the reason and necessity which gave rise to it; and hence, such a deposition will not be competent evidence, where it is shown that the witness had, after it was taken, removed within the jurisdiction of the court, and that his attendance might have been procured at the trial.</p>

<p>1. Will: abatement of legacies: residuum. — In the absence of any express direction in the will to the contrary, the payment of the testator’s debts, and the administration, and funeral expenses, is chargeable upon the residuum; and the residuary legatees have no right to call upon specific or general legatees to abate; but residuary legacies may be exonerated from the payment of debts and expenses, by a direction in the will to discharge them out of a particular part of the estate. See Brown v. Ooombridge, 4 Madd. R. 495.; 1 Jac. & Walk. 102.</p> <p>2. Same : same : bequests in lieu oe dower entitled to preference. — If there be any valuable consideration for a testamentary gift, it will be entitled to preference of payment over other general legacies which are mere bounties: a bequest to the widow in lieu of her dower, is upon a valuable consideration, and hence entitled to preference over voluntary legacies.</p> <p>3. Same : same : intention to charge debts on particular fund : case in judgment.- — A bequest of “ all the money and choses in action” of the testator, “which shall remain after the payment of his just debts,” creates a charge upon the fund for the payment of debts, and exonerates the residuum.</p> <p>4. Same : same : administration and funeral expenses, not debts of testator. — The funeral and administration expenses', are not debts of the testator, and will not be included in a provision made in the will for the payment of debts out of a particular fund, on which they would not otherwise be chargeable.</p> <p>5. Same : legatees not entitled to compensation for loss’ op fund bequeathed : case in judgment. — The testator, before his death, had made an invalid sale of land, and held the note of the purchaser for the balance of the ■ purchase-money unpaid: the executor offered to execute a deed, if the purchaser would pay the note, which he refused: the executor then brought suit for, and recovered the land, and afterwards sold it as a part of the residuum, and the purchaser recovered back the purchase-money he had paid. By the ■ first clause of the will, all the notes and choses in action belonging to testator, • and remaining after the payment of debts, were bequeathed to the widow, and by the fourteenth clause, the residuum was given to other parties. Held, that the residuary legatees were entitled to the proceeds of the sale of the land, and that the widow was not entitled to reimbursement out of them, for the note of the purchaser held by the testator at his death.</p> <p>6. Same,: construction op. — It is always the safest mode, in the interpretation of wills, to adhere, to the words of the instrument, without considering either circumstances arising aliunde, or calculations that may be made as to the amount of the property, or the consequences which may flow from any particular construction.</p>

<p>1. Statute op limitations : ten years’ adverse possession confers title.— Ten years’ actual adverse possession of land, vests in the possessor a full and complete title to it, upon which he may maintain an action of ejectment, against another, who may have entered. See Hutch. Dig. 829, § 3; Ellis v. Murray, 28 Miss. E. 139.</p> <p>2. Same : adverse possession, a question for the jury. — No precise general rule can be laid down, in reference to adverse possession, in all cases. Whether a possession be adverse, or not, depends upon the intention of the possessor, and the knowledge, or means of knowledge, on the part of the owner, and-is, therefore, a matter to be determined by the jury. See Ang. Dim. 447.</p> <p>3. Same: what constitutes adverse possession. — -Visible and notorious occupation, with intent to claim against the world, constitutes adverse possession. So will any visible acts of ownership exercised over land, which, from their nature, indicate notorious claim of property in it, if continued for a long time, with the knowledge of the owner, and without interruption, or adverse entry, by him.</p> <p>4. Same: same. — Neither actual occupation, residence, or cultivation, is necessary, to constitute adverse possession, where the property is so situated as not to admit of any permanent useful improvement.</p> <p>5. Same : case in judgment. — The locus in quo was in the actual occupancy of the defendant, and those under whom he claimed, for twelve years, and under a claim of title which was known to the owner; the improvements were then destroyed by fire, and, after that, the land was not actually occupied by any person, for six years, when the buildings were rebuilt, and actual occupation again commenced by the defendant. During the six years in which there was no actual occupation, the defendant’s claim of title was open and notorious in the neighborhood. Held, that the adverse possession was continuous and uninterrupted, during the whole period.</p>

Hon. John Watts, judge. On the 9th of May, A.D. 1855, the plaintiffs in error brought an action of ejectment, against the defendants in error, to recover possession of a certain tract of land, situated in Rankin county. The defendants pleaded the Statute of Limitations of seven and ten years.

<p>ERROR to the Circuit Court of Hinds county. Hon. John Watts, judge.</p>

<p>1. Principal and surety: condition that surety shall not be bound, unless another become bound, good. — Aii agreement between the obligee, or his agent, and a surety, made at the time of the sealing and delivery of the bond by the latter, that he is not to be bound thereby, unless the signature of another, as his eo-surety, is procured, is a valid condition, the non-performance of which, will render the bond void, as to the surety. See 19 E. 0. L. 466 ; 35 lb. 64: 4 Watts, 21; 2 Leigh, 157 ; 3 Dev. 291.</p> <p>2. Case cited and explained. — The case of Oraves v. Tucker, 10 S. & M. 9, cited and explained, and declared not to be inconsistent with the doctrines of this case.</p>

<p>Constitutional law: chancery: provision eor transfer of causes: art. 114, p. 657, revised code. — Art. 114, p. 557, of the Revised Code, which provides that the chancellor and vice-chancellors, at the term of their respective courts next preceding the first Monday in November, A.D. 1857, shall make an order, transferring each case then remaining undetermined in their several courts, to the Chancery Court of the proper county, is constitutional; and an order so made, though without consent of the parties, is valid, and vests jurisdiction over the cause, in the court to which the transfer has been ordered.</p>

Hon. William L. Harris, judge. Patterson P. Windham, as President of the Board of Trustees of Township nine, Range fourteen east, brought this action of ejectment to recover the possession of the southwest quarter of the sixteenth section in said township.

<p>1. Land laws: act of congress of 28th September, 1850, donating swamp and overflowed lands, constrded. — The issuance of the patent to the State, as provided for by the second section of the Act of Congress of the 28th September, 1850, donating swamp and overflowed lands to this and other States, is not necessary to the vesting in the State of the legal title to the lands thereby granted. The first section of that act, grants at the date of its passage, to the State, all the swamp and overflowed lands lying within its limits, and the legal title to the same vests then in the State, as fully as if the lands were specifically designated in the act. Rutherford v. Green, 2 Wheat. 196.</p> <p>2. Grant : repugnant provisions : construction of statutes. — Where two clauses of a grant are repugnant, the former will prevail: and this rule is applicable to a statute making a grant of property.</p> <p>3. Land laws: act 28th September, 1850: confirmation of lands to the state. — The object of that provision of the Act of Congress of the 28th September, 1850, granting swamp and overflowed lands to this State, which directs, as the mode of ascertaining the lands thereby granted, that the secretary of the interior shall make out an accurate list and plat of the lands embraced in the act, and transmit it to the governor of the State, was simply, that the ascertainment and location of the lands, should be made by the authority and with the approval of the secretary; and hence, the confirmation by the secretary of the interior, of a list of such lands, made by a commissioner appointed by the governor, is a substantial compliance with the act, and a sufficient designation of the lands embraced in it.</p> <p>4. Evidence : record from land office. — A list of the swamp and overflowed lands located in this State, under the Act of Congress of the 28th September, 1850, approved and confirmed by the secretary of the interior, and transmitted by him to the register of the United States land office, for the district in which the lands are situated, is a record, and a copy thereof duly certified by the register, is admissible in evidence under the provisions of the Act of June 29th, 1822. Hutch. Dig. Art. 3, p. 864.</p> <p>5. New trial: when not granted for improper admission of evidence.— The improper admission of evidence, to establish a fact otherwise sufficiently proven, is no ground for awarding a new trial.</p> <p>6. Same: when- not granted for improper instructions. — A new trial will not be granted, because the court in the instructions given to the jury, left to their determination, a question of law arising upon the construction of a written instrument, if it appear by the verdict that the jury decided, correctly.</p>

Hon. I. M. Simmons, judge. Henry R. Coulter (the appellee’s intestate), and Ann M. Henderson (now Effinger), administered jointly on the estate of George W. Henderson. After Coulter’s death, his administrator, Richards, presented a final account of Coulter’s administration of said estate. To this account, F. A. Effinger, guardian of the only child and heir of Henderson, filed several exceptions.

Hon. Charles Scott, chancellor. Cecilia Reagan, and P. M. Garrett one of the appellees, were appointed administratrix and administrator, on the estate of William Cargill, deceased. Pending the administration of said estate, Garrett resigned his trust, and made a final settlement, and the Court of Probates rendered a judgment against Mrs. Reagan, as adminis-tratrix, in his favor, for $2330.75, of which sum $1945 were for commissions.

Hon. William Cotliran, judge. The original declaration in this cause, was filed to the May term, A.D. 1856, and sought to recover, in the name of Wood, for the use of Wallace, the sum of $5000, for… Held: if the case were brought here solely on a motion for new trial. The instruction, asserting that the legal title passes by indorsement, &c., is error, for two reasons: 1st. Not being payable to order or bearer, suit could only have been brought as it was.

<p>Husband and wipe : when property purchased by the wipe, on the credit OP THE JOINT NOTE OP HUSBAND AND WIPE, NOT LIABLE POR HUSBAND’S debts. — Property purchased in good faith, by a feme covert who owns a separate estate, on the credit of the joint note of herself and husband, and which was actually paid for, without a resort to his means, is not liable to the payment of his debts.</p>

Euror to the Circuit Court of Rankin county. Hon. John Watts, judge. This was an action by P. Carr, a planter, to recover of Kirkland & Co. the proceeds of thirty-five bales of cotton, shipped by Kirkland & Co. to Lowe, Pattison & Co., of New Orleans. The substance of the pleadings is set out in the opinion of the court.

Hon. Charles Scott, chancellor. This was a bill filed by Adelison Dunlap and his wife, and Elizabeth Baldwin, William Baldwin, Clara Baldwin, and Harriet Baldwin, the four last being minors and children of Elizabeth Baldwin, deceased (who, together with Mrs. Dunlap, and the defendant’s testator, L. W. Petrie, are the heirs of E. H. Petrie, deceased), for the purpose of annulling a certain agreement, hereinafter set forth, entered into between said E. H. and L. W. Petrie; or,…

Hon. Robert B. Mayes, judge. At the September term, A.D. 1857, the appellee, who was the widow of Philip J. Burrus, deceased, applied for and obtained letters of administration on his estate,… Held: that this is so much a matter of discretion in the Probate Court, that they will not interfere with its exercise, unless where there has been manifest abuse. Sattenvhite v. Littlefield et ux. 13 S. & M. 307; Cherry v. Jarátt-, 25 Miss. R. 221.

Hon. William L. Harris, judge. Tbe point upon which this cause was decided against the plaintiff, in the court below, was the supposed want of power, in the board of trustees, to make the contract set forth in the complaint.

<p>1. Statute op limitations : nr Alabama, vests title to personal property in the adverse possessor. — By the law of Alabama, the adverse possession of a slave for six years, not only bars the remedy for its recovery, but vests the title in the adverse possessor; nor does it change the rule in such a case, that the plaintiff is a non-resident. See Sims v. Canfield, 2 Ala. 555; Lay's Executor v. Lawson, 23 lb. 311.</p> <p>2. Conflict op laws : title acquired by statute op limitations, in one state, max be set up in another. — Although the Statute of Limitations of one State, is not, as a general rule, technically pleadable in another, yet, where such statute not only bars the remedy, but vests the title to the property in the possessor, such title so acquired will be recognized and protected, in every other State. Shelby v. Gay, 11 Wheat. 362; Mbseby v. Williams, 5 How. 523.</p> <p>3. Statute of limitations : bona fide adverse possessor, not affected by the fraud of nis yendor. — The open and notorious possession of personal property, for the period prescribed by the Statute of Limitations, vests a title in the adverse possessor, who is a-bonafide purchaser for value, notwithstanding his vendor may have acquired possession by fraud, and concealed from the true owner the place where the property was situated.</p>

<p>Appeal from tbe Court of Probates of Pontotoc county. Hon. John S. Neely, judge.</p>

Hon. Charles Scott, chancellor. This was a bill, filed by Mary Wells (the appellee), the widow of Bannister Wells, deceased, against… Held: that the will was a Mississippi will, and was governed by the laws of this State; that it was duly executed, according to the laws of this State, and had not been revoked; but that it only operated upon property owned by the testator when it was made; and they reversed the decree of the District Court, to the extent of depriving Mrs.…

<p>1. Plaintiff or appellant can dismiss at ms own cost. — Generally, a party wlio institutes a suit, or prosecutes an appeal, lias the right to dismiss the proceeding ; but if he does so, the costs must be taxed against him.</p> <p>2. Effect .of dismissal, in circuit court, of a suit before jury of inquest to condemn land for railroad. — Where the owner of land appeals to the Circuit Court from the inquest of a jury assessing damages accruing from the location of a railroad thereon, and at his instance the Circuit Court dismisses the suit, although such action be based upon grounds which assume the absolute invalidity of the proceedings before the jury of inquest, the action of the court will be in effect a dismissal of the appeal merely, and not an annulment of the proceedings of the jury of inquest, which if not absolutely void, but only voidable, will be left in full force; and hence, upon such an order, it would be improper to tax the railroad company with the costs.</p>

Hon. James F. Trotter, vice-chancellor. The appellees filed their bill in the court below in 1853, against W. H. Wyse, appellant’s intestate, to recover two slaves, and their hires. Held: that the complainants had a right to recover the value of a slave and his hires, as against Henderson & Moore, but as against another party to the suit, Montgomery, who had purchased the slave from Henderson & Moore, the court says: “ But there is no equity shown against Montgomery.

<p>ERROR to the Circuit Court of Yalabusha county. Hon. William Cothran, judge.</p> <p>Cited New Orleans J. and Gf. N. Railroad Oo. v. Harris, 5 Cush. 585; Hester v. Memphis and Charleston Railroad Co. 8 George 378; 1 Call’s R. 370 ; Grant on Corp. 19, note e.</p> <p>Cited Clark v. Monongahela Navigation Co., 10 Watts, 364; Pennsylvania and Ohio Canal Co. v. Webb, 9 Ohio R. 136; London and B. Railway Co. v. Wilson, 6 Bing. (N. C.) 135; Del. and Att. R. R. Co. v. Iriek, 3 Tabr. 321; Banbury Railroad Co. v. Wilson, 22 Conn. R. 435; 18 Missouri R. 210.</p>

<p>ERROR to the Circuit Court of Tishemingo county. Hon. P. T. Scruggs, judge.</p> <p>Cited Hester v. The Memphis and Charleston Railroad Company, 32 Miss. R. 378.</p>

<p>Executor and administrator : estate not bound or prejudiced by the admissions of toe administrator. — An estate cannot be prejudiced or es-topped by the mere silence of the administrator, or his omission to assert title for the estate, or to do an act in relation to its interest; and hence, in a controversy between the administrator and a third person, involving the question of the title of the decedent to property, it is incompetent to show that the administrator acquiesced in the claim of the adverse party, by introducing in evidence his inventory of the estate, in which the property in controversy is not embraced as a part of the assets of the intestate. See Magee v. Gregg, 11 S. & M. 10 ; Woods v. Ridley, 21 Miss. 149.</p>

<p>1. Action : eight op usee, ip bona pide, not the subject op inquiry at law. —A court of law, will not inquire into the nature and extent of the interest of the usee in the instrument sued on, if it be conceded that his possession is bona fide.</p> <p>2. Pleading: must answer as much op the action as it professes to.— A plea is bad, which professes to answer the whole action, if it really answer only a part.</p>

<p>Statute op frauds : sale of growing trees void unless in writing. — The term land, embraces not only the soil, but its natural produce, growing upon and affixed to it. Such things are a part and parcel of the realty, and pass by a grant of the land; and hence, a sale of growing timber is within the first section of the Statute of Frauds, and void unless in writing. See Shep. Touch. 915 4 Bl. Com. 232; 2 lb. 122; 10 Adolph. & Ellis, 753; 2 Brod. & Bing. 99; 6 East, 602; 1 Denio, 550 ; 1 Barb. 542 ;6N.H. 630; 1 Y. & J. 396 ; 5 Barb. 364.</p>